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ABA Section of Dispute Resolution

2013 Annual Conference, Chicago, IL

Symposium on ADR in the Courts

Wednesday, April 3, 2013

Making Court ADR Happen Integrating Statewide Consistency

and Local Court Autonomy

Presenters:

Celia Ludi, Esq., ADR Program/Court Constituent Services Director,First Judicial District Court, Santa Fe, NM

David Levin, Esq., Director, Court Alternatives,

Second Judicial District Court, Albuquerque, NM

Jacqueline Hagerott, J.D., LL. M., Manager, Dispute Resolution Section,Supreme Court of Ohio, Columbus, OH

Debora Brownyard, J.D., Director, Dispute Resolution/Special Court Programs,

Nebraska Supreme Court, Lincoln, NE

Description of Presentation

Court ADR has evolved both from the trial court level and on a statewide basis. As court ADR progressesinto the next decade, how can statewide consistency be balanced with local court autonomy? This sessiondescribes the lessons learned from three states ADR court staff who are working collaboratively: Ohio,

New Mexico, and Nebraska. Mediator training and credentialing, statutory and court mediation and ADRrules and forms will be discussed. Integration and sustainability of ADR in court processes will bedescribed. Participants will engage in a dialogue about future trends and issues regarding ADR as anessential court service.


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TABLE OF CONTENTS

Section I: ABA Dispute Resolution 2013 Court ADR Symposium Presentation Outline 3

Section II: Nebraska Dispute Resolution

A. Elizabeth R. Kosier,Mediation in Nebraska: An Innovative Past 4a Spirited Present, and a Provocative Future, 31 CREIGHTONL. REV. 183 (1997)

B. Nebraska Statutory, Rule, and Policy Provisions in ADR 21

Section III: New Mexico Dispute Resolution

A. Cynthia Savage and David Levin,ADR Developments in New Mexico 26After the NCSC Report(2013)

B. David Levin, The New Mexico Experience: Change Challenges Early 37Established Programs (2007)

Section IV: Ohio Dispute Resolution

A. Jacqueline C. Hagerott,Foreclosure Mediation: Responding to the 44

Current Crisis, 40 CAP. U. L. REV. 90832 (2012).

B. The Supreme Court of Ohio Dispute Resolution Section (2012) 80

Additional Web Resources

http://www.supremecourt.ne.gov

http://www.nemediation.org

http://www.supremecourt.ohio.gov

http://www.nmcourts.gov

http://www.nmadr.org

http://www.courtadr.org


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Section I: ABA Dispute Resolution 2013 Court ADR Symposium Presentation Outline

I. Overview and evolution of statewide court-connected dispute resolution: 1990-2013

A. Nebraska

B. New Mexico

C. Ohio

II. Collaboration and lessons learned among the three states court ADR staff regarding

statewide consistency and local court autonomy

A. Lessons Learned

1.National Networking

2.Methods of Communication

3.Combining Resources

a. Training Manuals

b. Standards

B. Mediator quality assurance, training, resourcing on state and local court levels

1. Education Assessment

a. Needs Assessment

b. Dispute Resolution Education Requirements

c. Case Management Requirements

2. Curriculum Development Process

a. Multi-Jurisdiction Curriculum

b. Elements

c. Delivery

d. Evaluation

C. Statewide consistency and local court autonomy: issues of collaboration, integration,

and sustainability

III. Future trends and issues of ADR as an essential court service

A. State and local court ADR as a essential court service references from ABA

Dispute Resolution Section, National Center for State Courts, RSI, others

B. Activity: facilitated group dialogue on topic


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Mullin, William2/12/2013

For Educational Use Only

MEDIATION IN NEBRASKA: AN INNOVATIVE PAST, A..., 31 Creighton L. Rev. 183

2013 Thomson Reuters. No claim to original U.S. Government Works. 1

31 Creighton L. Rev. 183

Creighton Law Review

December, 1997

MEDIATION IN NEBRASKA: AN INNOVATIVE PAST, A

SPIRITED PRESENT, AND A PROVOCATIVE FUTURE

Elizabeth R. Kosier d1

Copyright (c) 1997 Creighton University; Elizabeth R. Kosier

INTRODUCTION

Only twice in my life have I felt utterly ruined -once when I lost a lawsuit, and once when I won. 1

For several years there has been a quiet transformation occurring in Nebraska's formal and informal systems of justice. 2 The

forthright vision of leading individuals and the tenacious work of many others generated the momentum which has brought

Nebraska's dispute resolution system forward as a respected and successful model for the delivery of mediation services. 3 What

was envisioned as an effective and efficient framework for ensuring public access to community-based mediation has become

a system which encompasses a broad array of readily accessible programs and services. Whether targeting court interface,

family dynamics, or community decision making, these programs are grounded in principles of self-determination and capacity

building, and their outcomes have far reaching impact on the lives of Nebraska residents.

Nebraska's dispute resolution system celebrated its fifth birthday in 1997. To recognize five years of accomplishments and to

ponder what seeds those efforts have germinated, this Article reviews the development, growth, and aspirations of Nebraska's

dispute resolution system. The Article also outlines present and future challenges in Nebraska, *184 as well as some of the

intriguing issues that are emerging as a natural consequence of system development. At a minimum, readers will acquire a

definition of mediation and its outcomes in the context of Nebraska's dispute resolution system. More importantly, this overview

invites attorneys, judges, and law students to contemplate their roles in shaping the relationship between the traditional practice

of law or adjudication and contemporary alternatives for achieving justice. Optimally, readers will gain new perspectives

regarding how to integrate mediation, and its underlying principles, into the legal and judicial arenas.

EARLY DEVELOPMENT

Conflict resolution traditions throughout the world, issues of social justice, and increased burdens on America's judicial systeminfluenced the development of mediation in the United States and in Nebraska. Many of today's collaborative or community-

oriented problem solving mechanisms have their roots in religious communities, tribal practices, ancient concepts of law, and

diverse philosophical frameworks. A historical review of world religions - from Christianity, Judaism, and Islam to Buddhism

and Hinduism - reveals examples of cooperative or informal dispute resolution processes. 4 Prior to the encroachment of Anglo-

European influences in North America, Native American jurisprudence generally embraced concepts of public consensus and

community harmony. 5 Cooperative settlement procedures, which continue to be utilized around the world, are particularly

prevalent in Asian, African, and Latin American countries. 6 In China, mediation is the predominant method of civil dispute

Making Court ADR Happen, Page 3


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resolution and a conciliatory, relationship-building orientation characterizes Japanese negotiation style. 7 Disputes over natural

resources regularly entail the intervention of neutrals in Ecuador, Honduras, and Costa Rica. 8 African tribes are known to turn

to the assistance of tribal chiefs or councils to achieve negotiated resolutions. 9

*185 In the United States, consensual conflict resolution was spurred by civil unrest and the rise in the 1960's of social

values rooted in participatory democracy, respect for human dignity, and personal autonomy. 10 Although Neighborhood Justice

Centers were created around the nation in response to these developments, it was not until the agricultural crisis of the 1980's

that mediation gained a foothold in Nebraska. 11 Joint efforts by organizations concerned with the legal implications of the crisis

and its impact on Nebraska farmers, including the Nebraska State Bar Association, Interchurch Ministries of Nebraska, and

the Legal Aid Society, helped ensure passage of the Nebraska Farm Mediation Act in 1988. 12 As the harbinger for mediation

growth in Nebraska, the quality and success of farm mediation fostered broad, interdisciplinary interest in the application of

the same concepts to family and community issues. 13 Careful deliberation by the Legal Aid Society and the Nebraska State

Bar Association's Alternative Dispute Resolution Committee translated that interest into the drafting of the Dispute Resolution

Act (the Act).

14

Nebraska's Unicameral Legislature passed the Act in 1991.

15

It serves as the state's most influential lawgoverning dispute resolution and, more specifically, mediation.

NEBRASKA'S DECENTRALIZED DISPUTE RESOLUTION SYSTEM

The Act established two important components of Nebraska's dispute resolution system: the Office of Dispute Resolution

(ODR), which is part of the Administrative Office of the Courts/Probation under the authority of the Nebraska Supreme Court,

and a process for the creation of not-for-profit mediation centers and court-established mediation programs. 16 An Advisory

Council on Dispute Resolution (Advisory Council) composed of people knowledgeable about mediation and representing

Nebraska's geographical, cultural and workforce diversity was also created. 17

ODR and the Advisory Council work together to administer the Act. The ODR director also serves as a liaison for referral

development and systems design, and for state, national, and international *186 activities in the mushrooming field of dispute

resolution. The centers form Nebraska's direct service delivery system. These centers play a significant role in providing high

quality mediation and conflict resolution programs in Nebraska's ninety-three counties. All three system components - ODR,

the Advisory Council, and the centers - work in concert to contribute to the on-going development of mediation programs in

Nebraska, to advocate for the utilization of collaborative problem solving, and to maintain a standard of excellence characterized

by effectiveness, efficiency, public accountability, and competency. 18

Upon approval in 1992, six regional mediation centers began operations funded by ODR-allocated grants. 19 The centers

are governed by the Act as well as policies, procedures, and a Code of Standards and Ethics approved by ODR and the

Nebraska Supreme Court. 20 As independent entities, each center further promulgates policies and procedures appropriate to

their distinctive operational needs. 21

Since their inception, ODR and the mediation centers have built statewide continuity through mutual support, joint policy

and procedure development, training coordination, systemic data collection and records management, and cooperative public

education. Separately, each center's growth and development illustrates regional variations which reflect customized responses

to local demand, systems and organizational interface, diverse funding sources, unique strengths and challenges, and center

governance decisions. As 501(c)(3) non-profit corporations, centers constantly struggle to maintain a balance between rapid

program expansion and fiscal growth. In 1995-96, resource development efforts more than doubled system funding. 22 Revenue



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sources include local, state, and federal public and private grants; contracts; training and case fees; private donations; and center

membership dues.

*187 Nebraska's dispute resolution system is viewed nationally as an innovative public-private partnership. Its hybrid

decentralized, collaborative-but-independent structure is a remarkably effective model for statewide integration and programdevelopment. Internal perspectives suggest that every component of the structure - from ODR to each autonomous center -

has critical influence on whether the dispute resolution system as a whole is healthy and sustainable. From an external vantage

point, the whole may indeed be greater than the sum of its parts. If the system's status after five years is any indication, the

premise of the legislation which birthed it clearly remains viable.

THE PRINCIPLES BEHIND THE SYSTEM

Without question, the Dispute Resolution Act targets specific principles regarding the practice of mediation and the role of

mediators. The conceptual framework embodied in the Act's legislative findings emphasizes the social costs of unresolved

conflict; the value of relationship and trust building in private, self-directed problem solving; the burden of litigation on the

courts and on disputants; and the benefits that mediation offers to disputants and the legal system. 23 The Act's open-ended title

might lead a reader to believe its content encompasses dispute resolution generally. However, the Act, as it stands, narrowly

describes a model of mediation which is facilitative in nature and delineates the areas in which it may be applied, including

civil claims, disputes in the area of domestic relations, and issues involving juveniles or juvenile offenses. 24

Mediation offered by ODR-approved centers involves a systematic process by which a third party neutral assists two or

more people [to] reach a mutually agreed upon negotiated solution to their conflict. 25 It is a model which encourages open

communication, improved relationships, and a future-oriented focus on problem solving. As defined by the Act, mediations are

generally conducted in private and issues *188 discussed are held confidential by parties and by the mediators. 26 Participation

in mediation is voluntary. 27 The process enables parties to take responsibility for their own solutions because the mediator has

no authority to offer suggestions or in any way impose an outcome on the parties. Different from the third party function in

arbitration and adjudication, a mediator has responsibility only for the negotiation process, not the content of the exchange. 28

The mediator facilitates negotiation between the parties by helping them exchange information, clarify and narrow differences,

identify common interests, invent options for mutual gain, and design agreement terms that are satisfactory to all parties.

The theoretical premise upon which Nebraska's model is based is derived from the principled, interest-based negotiation

approach described by Fisher and Ury in their seminal book, Getting To Yes: Negotiating Agreement Without Giving In. 29

Focusing on the interests or needs people want satisfied, instead of their narrow, incompatible demands, provides the foundation

for durable solutions. Although interest-based, facilitative mediation is a definition common to many practitioners and writers

in the field of dispute resolution, 30 some in the field argue that it is not the only definition. 31 A number of organizations,

legal scholars, and practitioners promote evaluative mediation in which the neutral contributes to the substantive content and

offers suggestions for party consideration. 32 In contrast, mediation practice under the Act requires an impartial relationship

to the parties and neutrality with regard to the issues discussed. 33 With capacity-building as an aspiration, it is the belief

within Nebraska's system that facilitative mediation respects personal autonomy and that mediator-generated *189 content

diminishes the ability of parties to take responsibility for creating solutions and to self-enforce the outcomes. 34

ASSURANCE OF QUALITY



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The question of quality control is the subject of much debate nationally. 35 Building a system which is responsive to the people

of Nebraska requires mechanisms to ensure credible services and accountability. Nebraska's dispute resolution system has

numerous measures imbedded in its structure to sustain the system and prevent it from operating in a vacuum.

Mediation training is coordinated through the ODR Training Institute. Institute faculty, drawn from ODR and center staff, must

meet rigorous competency standards to achieve and maintain Lead Trainer status. 36 As a result, training programs receive

consistently superior ratings from participants. 37 Having gained a national reputation for the high quality of its mediator training

program, Nebraska further contributes to professional development through American Bar Association activities, state and

national conferences, ODR's presence on national task forces, and center participation in state and national conflict resolution

training initiatives. 38

Nebraska's mediation centers play a unique role because they offer services in their respective communities that are different

from all others. Public education activities reveal that a sizable percentage of Nebraskans are either uninformed about mediation

or misunderstand the role of mediators. Those realities beg a question that should resonate at the core of the system's efforts to

build competency: What will it take for the public to know quality when they see it?

The system's response to that question is two-fold: public outreach which provides a framework for consumers to understand

and compare dispute resolution models, and public input regarding service delivery. On one front, disseminating comprehensive

information to *190 the public about the theory and standards of interest-based, facilitative mediation either underlies or

dominates all ODR and center activities. From another direction, because mediation is a performance based skill and mediators

have the power to influence both the process and the outcome, issues of program and practitioner competency require multi-

level assessment. 39 A laundry list of methods proposed by practitioners - recruitment and selection of mediators, training and

continuing education, direct supervision, certification, standards of conduct, and establishment of mediator liability - flourish

in Nebraska's system and are supported by formal policies and procedures. 40

In a field that is largely unregulated, Nebraska's layers of evaluation invite public confidence. 41 Mediators that choose to

affiliate with centers as volunteers are screened and interviewed prior to being accepted for training. Centers select mediators

for training, not on the basis of their professional qualifications, but in view of their overall backgrounds (including geographic

and ethnic diversity) and human relations skills. Neither a college degree nor a legal education is required although a number of

center-affiliated mediators are full time attorneys. Competency indicators in training include the ability to establish rapport and

balance among parties, to maintain neutrality, to communicate clearly, and to listen actively, as well as demonstrating comfort

with facilitating resolution within a structured process.

Following the completion of ODR training or its equivalent, center affiliated mediators agree in writing to comply with statutory

guidelines and the system's Code of Standards and Ethics. 42 Most center affiliated mediators serve as volunteers until they have

donated a designated amount of volunteer mediation time, at which point they are eligible to be certified and compensated for

their mediation work. Each center's policy varies slightly. However, certification criteria operate across the state in accordance

with ODR standards and generally include hours of mediation experience, compliance with training and continuing education

requirements, and evidence of satisfactory performance derived from evaluations by supervising mediators and mediation

participants.

*191 Performance is gauged in many ways and at many points along the course of a mediator's experience. To measure

competency, evaluation must take into account the composite of factors that determine mediation effectiveness. 43 Factors



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include, but are not limited to: rate of agreement, ability to deal effectively with situational variables and party characteristics,

appropriate utilization of intervention strategies, and adjusting to case complexity.

To comply with the Dispute Resolution Act and ODR Code of Standards and Ethics, newly trained Nebraska mediators

first must complete an apprenticeship in which experienced mediators have supervisory responsibility. 44 Almost withoutexception, mediations are conducted by a team of two well-matched co-mediators. It is the system's belief that this format,

when done competently, has far more benefits for the parties than risks. 45 Co-mediators model cooperative interaction and they

blend complementary skills that serve as a system of checks and balances within a mediation session. All mediators, whether

experienced or not, are evaluated by their co-mediators. Evaluations after individual sessions are generally informal and verbal.

Assessment at the completion of every case is written and submitted to the respective center. Evaluations require their authors

to measure mediator performance against the statutory principles, the ethics and standards of conduct adopted by Nebraska's

system, and the skills expected of a competent mediator.

In accord with ODR standards, centers require mediators to complete a minimum of two continuing education courses per

year. For cases that have unique substantive or procedural characteristics, such as federal mediation or special education cases,

mediators also are required to complete specialized training.

One of the most important aspects of evaluating program and practitioner competency involves participant input. This

encompasses both a mechanism for participants to report their level of satisfaction and an opportunity to file grievances

and receive prompt responses to such complaints. In Nebraska, all mediation participants, including legal counsel and other

advocates at the table, are requested to complete a comprehensive evaluation of services. These responses are compiled by

ODR and centers and used to evaluate program quality, accountability to the public, and mediator competency. Programs that

are associated with the courts and state agencies have administrative *192 oversight mechanisms, such as data analysis and

annual reviews, in addition to participant input.

The Act offers yet another layer of public protection without undermining principles of self-determination. An immunity clause

protects center mediators, staff, and governing board members engaged in good practice from being held liable for civil damagesfor statements or decisions made within a mediation process. However, actions constituting willful or wanton misconduct have

no protection under the Act. 46

Opportunities to examine the system on a macro level also occur on two other planes: the pooling of case management data

and participant feedback through quarterly reporting and analysis, and annual center reviews. The body of information derived

from these mechanisms is used to create an annual report to the Nebraska Legislature and to the public, and to determine whether

center compliance with standards warrants continued ODR approval status. 47

Nebraska's comprehensive system of assessment embodies many, if not all, of the standards of practice recommended in the legal

field today. Because the state's standards draw on, and contribute to, nationally accepted guidelines, few if any advocates for

quality control in mediation could argue that Nebraska has failed to address the primary questions of access, conflicts of interest,

confidentiality, mediator performance, program accountability and efficiency, and party self-empowerment. 48 A review of

raw data in a later section offers a compelling answer to the question regarding the extent to which program implementation in

Nebraska supports and defends both the principles outlined in the Dispute Resolution Act and those promulgated on a national

level.

*193 PROGRAM IMPLEMENTATION OF STATUTORY PRINCIPLES



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During the past five years, the promise of the Dispute Resolution Act has been fulfilled, and in many ways surpassed, through

the development of a multi-dimensional training unit and an impressive service delivery system. The ODR Training Institute

develops and conducts the thirty-hour Basic Mediation and thirty-hour Family Mediation training required by the Act and

determines mediator compliance with training requirements. 49 As the diversity and complexity of cases has grown since 1991,

offerings through the Training Institute have expanded to include an extensive menu of continuing education seminars to preparemediators for the specific case types and special issues discussed below.

Training content conscientiously applies the statutory principles of neutrality, self-enforcement, voluntary participation,

confidentiality, and respect for human dignity. 50 Consistent with national standards and contemporary learning theory, trainees

are guided through a program of conflict theory, self-analysis, communication skills building, and situational application. 51

Training emphasizes participatory learning because mediation is a complex, difficult skill and the strategies necessary for well-

executed facilitative mediation often counter the traditional assumptions people have about problem solving. 52 Following

progressively more demanding performance-based application of mediation principles (including role plays and other active

learning exercises), the training program culminates with a close examination of what rests at the heart of Nebraska mediation:

a Code of Standards and Ethics that reinforces the standards of conduct for facilitative mediation.

A continuing legal education course on Basic Mediation Skills sponsored by the Nebraska State Bar Association (NSBA)

adds substantially to the vitality of mediation in Nebraska. Averaging three thirty-hour workshops a year, the ODR Training

Institute faculty offers Nebraska attorneys a comprehensive Basic Mediation program with several purposes: to train attorney-

mediators, to enhance the *194 practice of law, and to better prepare attorneys representing clients in mediation. Judicial

attendance at mediation training has precipitated the growth of court-based mediation programs in Nebraska as well. The early

cooperation among Nebraska's mediation proponents, the Bar, and the Bench is maturing to a partnership supportive of healthy

systemic change.

In addition to the mediator training context, centers contribute to the system's capacity to serve the state through a

variety of center-sponsored educational opportunities. Training topics include interest-based negotiation, parenting, cross-cultural considerations in mediation, K-12 and higher education peer mediation, work place conflict resolution, conflict

management systems design, community collaboration, classroom conflict resolution, facilitating welfare self-sufficiency

contract negotiation, and restorative justice. Center training efforts also constitute a potent avenue for public education about

mediation.

Center service provision was framed by guidelines compiled during the system's first year of operation and was refined in

subsequent years. 53 Generally, fees charged by centers are governed by a sliding scale, either based on individual household

size and annual income or by number of employees. 54 In accordance with a waiver provision in the Act, no one may be

denied services due to inability to pay fees. 55 Operations are further prescribed by individual center policies and procedures

which govern recruitment, selection, and supervision of mediators; mediator training, performance, certification, and dismissal;

program evaluation; and consumer grievances. Well-defined case intake procedures help center staff discern whether a case is

suitable for mediation, educate parties about the process, and clarify the role of legal issues and attorneys in mediation. 56 For

the most part, fact gathering during intake is limited to party identification and a brief description of the nature of the dispute. 57

Because getting to the table is one of the most difficult aspects of voluntary mediation, 58 centers make practical materials

available to parties and their legal *195 representatives to assist in their understanding of and preparation for mediation. 59

Case intake is geared toward the consumers' needs and the trust building inherent in mediation starts at the point of inquiry.



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Since 1991, passage of other legislation related to mediation has helped secure a place for mediation in Nebraska. In 1993, a

spate of laws implementing alternative dispute resolution mechanisms were enacted. Legislative interest in streamlining the

resolution of claims under Nebraska's Fair Employment Practices Act prompted the passage of L.B. 124, which integrated

mediation and other confidential informal actions into the settlement work of the Nebraska Equal Opportunity Commission

(NEOC). 60 The legislation stimulated a two-year relationship between the NEOC and Nebraska's mediation centers byoffering complainants filing under the Fair Labor Standards Act the option of voluntary mediation through the regional

mediation centers. Following administrative changes at the NEOC, the utilization of mediation through the centers ceased.

A 1993 amendment to the law governing Nebraska's Worker's Compensation Court created a structure for informal dispute

resolution of worker's compensation claims by court staff or external mediators. 61 The amendment included principles of

confidentiality and immunity similar to the Dispute Resolution Act. 62 Motivated by the legislation, worker's compensation

court staff completed ODR Basic Mediation training and consulted with center staff to design their informal system. Court staff

mediators and center mediators recently began co-mediating claims.

The Parenting Act passed in 1993 and became operational September 1, 1994.

63

It supplements and extends legislative supportfor mediation in the area of domestic relations. Following legislative findings that describe the importance of joint parental

decision making in the best interest of minor children experiencing divorce or separation, the Parenting Act mandates district

court distribution of information regarding parenting plan mediation and encourages the use of mediation for the development of

a parenting plan. 64 Although the Parenting Act requires the use of mediators who are knowledgeable about the court procedures

and Nebraska family law, its reference to the *196 Dispute Resolution Act recognizes that family mediators need not be

attorneys. 65 Safeguards relative to domestic violence, including multi-level case screening and additional training, are also

required by the Parenting Act. 66

In 1994, the Legislature amended the Administrative Procedure Act by passing the Negotiated Rulemaking Act. 67 The purpose

of the Negotiated Rulemaking Act is to enable greater public participation in the promulgation of rules and regulations under

Nebraska's Administrative Procedures Act. 68 The Negotiated Rulemaking Act creates the opportunity and structure for public

input through negotiated rulemaking committees in order to reach agreements consensually. 69 The Act also retains the ability

of agencies to modify those agreements through the formal rulemaking process described in the Administrative Procedure

Act. 70 Consistent with other legislation, the concept of third party neutrality and impartiality is spelled out in the Act as well. 71

This law emulates federal legislative developments that culminated in the Administrative Dispute Resolution Act passed by

Congress in 1990. 72

A number of unsuccessful legislative proposals presented during the 1996-97 Legislative Session attempted to implement

mediation into a variety of decision making arenas. L.B. 1023 proposed mandatory mediation by school districts for the

resolution of special education issues. The introduction of L.B. 592 was for the purpose of making mediation under the Parenting

Act mandatory. Two bills, L.B. 548 and L.B. 171, proposed the reinstatement of mediation for NEOC claims. L.B. 1195 was

developed to implement victim/offender mediation options within the juvenile justice system. A review of program development

across the state demonstrates that although these bills may have induced more mediation cases in Nebraska, they are not

imperative to the continued utilization of mediation. 73

*197 Systems integration and referral development has enhanced mediation's legitimacy in Nebraska. In addition to the NEOC

and Worker's Compensation Court projects, a number of other developments exemplify the public-private partnership that

characterizes Nebraska's dispute resolution system. Court-related projects are in place within county courts, in the United States



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District Court for the District of Nebraska, in the state's district courts, and in juvenile court systems. In addition, ODR and

the centers have contracts with the state's Department of Health and Human Services and Department of Education to provide

mediation services and training.

Small claims cases are being mediated through county courts around the state. Two program models predominate: a day oftrial model and a court referral model. 74 For the day of trial model, teams of mediators are available in the small claims

courtroom to offer disputants on-location access to mediation as an alternative to having the judge decide their cases. It is

well-suited to court systems in urban settings. The court referral model requires referral of claims from the county court to the

mediation center, after which cases are handled through the regular center intake process. This model works well in Nebraska's

rural areas, as evidenced in a number of central, northeastern, and southeastern counties. Handling small claims in this manner

offers disputants more choices and fosters a rapidly growing relationship between the mediation centers and the Nebraska court

system.

As a result of the Parenting Act and the Dispute Resolution Act's specific citation of mediation in the domestic relations area,

cases dealing with the issues of dissolution and separation may be referred to the center by Nebraska district court judges.

Although the scope of that option is not close to being fully realized around the state, a steady number of family mediation

cases emanate from district court judges and from the attorneys that practice family law in the state. 75

In response to federal legislation, 76 the United States District Court for the District of Nebraska adopted General Order 95-10

directing federal judges to suggest certain cases for mediation. 77 Known as Fed-Med, this program has given Nebraska

attorney- *198 mediators an opportunity to facilitate the resolution of federal claims through mediation. The Order also allows

non-attorney mediators to serve as co-mediators. Knowing that similar programs around the nation restrict federal mediation

practice to attorneys, this is an unusual and forward-thinking arrangement in the federal court system which sheds favorable

light on the quality of ODR system mediators. The project is buttressed by the state's most formal procedural interface between

the courts and the dispute resolution system, as well as a comprehensive training component conducted by nationally respected

trainers.

Since 1991, county attorneys, juvenile probation offices, and juvenile court judges have given some recognition of the value

of juvenile victim-offender mediation and other restorative justice measures within juvenile justice systems. 78 Although

juvenile mediation programs have burgeoned nationally and studies are showing their positive impact on recidivism, mediation

referrals in Nebraska have been limited. 79 In response, several counties are presently engaged in collaborative efforts with

mediation centers to either formalize or expand juvenile diversion and juvenile justice options. 80

Two of the state's systems integration programs are conducted under contract with state agencies. The Special Education Option,

available through a partnership among the Department of Education, ODR, and the mediation centers, just completed its third

year. Under the contract, centers provide public outreach, conflict resolution skills training, and mediation services for schools

districts and families involved in special education. All costs are covered by the Department of Education. This project is

likely to be bolstered in the near future by the 1997 reauthorization and amendments to the federal Individuals *199 with

Disabilities Education Act (IDEA), which mandates that school districts establish and implement procedures . . .to allow

dispute resolution through mediation, whenever a hearing is requested. 81 To date, referrals under IDEA have not occurred.

To effectuate welfare reform, the Department of Health and Human Services (DHHS) contracted with ODR and the centers to

provide conflict resolution skills training to Employment First case workers and to conduct mediation of welfare self-sufficiency

contracts at two pilot sites in the state. Costs for Employment First mediation cases are borne by DHHS, and cases may be

referred by consumers, their advocates, or DHHS staff.



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Mediation case types vary widely in Nebraska, which points to the versatility and responsiveness of the dispute resolution

system. Development of referral bases through the special projects, contracts, and court programs account for a number of cases,

including those in the areas of employment discrimination, small claims and federal civil court referrals, and special education

issues. Family mediation, which has always remained an active area, deals with issues of divorce, custody and visitation,property settlement, parent-youth and other intergenerational relationships, elder law, and estate settlement. Other cases that

are regularly handled by the centers include educational or school-related issues, community and public policy disputes,

conflicts in the work place, supervision of public school and higher education peer mediation cases, issues of governance and

organizational management, juvenile victim-offender restitution decisions, landlord-tenant disputes, and questions surrounding

business contracts. Some centers also have the capacity to facilitate collaborative decision making, ideological discussions,

strategic planning, and conflict management systems design.

STATEWIDE PROGRAM RESULTS

Given the breadth of mediation development in Nebraska one question remains: is it working? A look at the wealth of data

collected and analyzed for five years, and the scope and depth of center programs provide an impressive answer. 82 During the

first year following passage of the Dispute Resolution Act, centers received 387 mediation inquiries. Of those inquiries, 230

became opened cases. A case is considered open when at least one of the parties decides to try mediation and the center has

determined that the case is suitable for *200 mediation. Thirty-nine percent, or ninety of the opened cases, were mediated. In

those not meeting, 42% of the second parties would not consent. A total of 489 people participated in mediation, and agreements

were reached in 65% of the cases.

Statistics collected during the first year show a seven day turn-around time for one session cases and an average of 51 days for

cases where consent is difficult to obtain or when there are multiple sessions. Evaluations indicated that 94% of the participants

perceived the mediator(s) to be neutral. Eighty percent of the participants were satisfied or very satisfied with the mediation

process. Fifty two percent of the participants reported that the party relationship improved, and 28% believed the relationship

stayed the same. The bulk of the cases, 38%, were referred by attorneys. Other referral sources included social service related

organizations, other mediators, friends and family members, the Farm Mediation Service, and law enforcement. Cases were

opened in 57% of Nebraska's counties. Seventy seven percent of the participants were Caucasian. Sixty six percent of the

participants had household incomes of $20,000 or less. The average cost per session was less than $16 and no fee was charged

to 45% of the participants. 83 Most centers had the equivalent of one full time staff member and an average of fifteen volunteer

mediators by the end of the year. Over 4,300 people were reached directly through center outreach efforts.

By July 1996, 664 people had been trained in Basic Mediation and another 155 in Family Mediation. Current estimates put

the number of trained mediators close to 1,000. In July 1996, 15% of the mediators were non-Caucasian, as were 15% of the

participants. Mediations now have occurred in 100% of Nebraska's counties.

During fiscal year 1995-96, 2,189 people experienced mediation - more than four times the number in 1992-93. Household

income level of parties (62% are at or below $20,000) changed very little. In 1995-96, 63% of participants paid no fee. For

those who were charged a fee, the average session cost was approximately $74. The higher participant costs reflect both an

increase in businesses involved as parties in employment cases, organizational disputes, and federal cases, and a higher fee

rate charged to organizations. Last year's participant evaluations continued to demonstrate a very high rate of satisfaction. On

a 1 (very high) to 5 (very low) scale, process fairness ratings averaged 1.5, mediator neutrality averaged 1.4, opportunity to

express views averaged 1.6, and level of satisfaction with mediation averaged 1.9. Sixty-two percent the referrals came from

courts and attorneys. After five years, centers now have an average of three staff members and 50 *201 to 150 volunteer

mediators. In spite of a significant increase in case complexity, turn around time has decreased to an average of 41 days. Case



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volume last year peaked at 976. Remarkably, 1996-97 raw data indicates a conservative estimate of 1,600 opened cases and

an agreement rate of 75%.

Special projects account for sizable case expansion. There were 306 small claims cases last year with an agreement rate of

63%. Participant evaluations were consistently high. Fifty one federal mediation cases were handled in the first nine monthsof the project. Despite the overall agreement rate of only 42%, participant evaluations were very strong. Plaintiffs' attorneys

offered the highest ratings, averaging 1.7.

A recent annual review of the Special Education Mediation Option showed a 567% increase in cases over three years. Seventy

four percent of the disputes reached agreement. Cases involved a variety of issues including program and service coordination,

placement, evaluation and assessment, staff and facilities, due process and Individual Education Plans, and inclusion. More

school administrators referred cases than ever before, but schools were still four times more likely to refuse to participate.

Two other characteristics of these cases warrant attention: cost and utilization. The cost to the Department of Education for

handling 34 mediation cases averaged $466 per case, the total of which was almost $34,000 less than the cost of conducting three

administrative hearings. It is apparent that Nebraska's taxpayers are realizing considerable savings under this contract. In termsof utilization, 62% of the cases originated in small school districts in rural counties. Analysis leads to speculation that legal and

other resources available to urban districts may block the potential for mediation, thereby reducing public access to the benefits

inherent in mediated solutions. The new IDEA amendments may prove to be a helpful incentive for school involvement. In

contrast to the overall success in special education, the contract with DHHS has not generated cases. Anticipating more referrals

after the completion of training, centers have been surprised by the lack of action. For both of these projects, the challenge

ahead will be to discover and overcome whatever barriers may exist.

Systems integration between ODR and NEOC resulted in interestingly dissimilar outcomes. Over a two year period, centers

opened close to 1200 cases, many of which had been backlogged with the NEOC for long periods of time. In three out of

every four cases, the employer choose not to mediate. Most frequently stated reasons for not mediating were advised not to by

attorney, not wanting to settle, and no basis for the claim. Mediated cases had a 58% average *202 rate of agreement.Whether or not cases reached agreement, participants consistently rated the experience as highly satisfactory. Satisfaction is

likely grounded in the development of outcomes that are more responsive to both claimants and respondents than traditional

remedies, and in the efficient and timely case management provided by the mediation centers. Cases backlogged for up to nine

months were finally closed within weeks following notification to the parties of the mediation option.

Looking beyond the mediation services described above, centers are exhibiting broad based community interface through a

creative array of program development. Many of the national goals and strategies in the field of conflict resolution are in place

in Nebraska. Cultural adaptations of the mediation model have been made to increase the sensitivity of the process to unique

tribal and ethnic community needs. Centers are engaged in complex, long range projects involving multi-level organizational

decision making, systems design, and public policy. A spectrum of youth programs to have been designed and implemented

aiming at building resiliency to risk, and reducing juvenile violence and delinquency. Many peer mediation programs in public

schools and higher education facilities have developed under the tutelage of Nebraska's mediation centers. Projects emphasizing

parenting and family relationship dynamics have been established in recent years. Closer affiliation between centers and courts

are resulting in innovations such as parent education programs for families experiencing divorce and separation. 84 Centers

are collaborating with organizations to facilitate mutual gain problem solving in the areas of elder law and the Americans

With Disabilities Act. Nebraska's youth and people in the workforce have reaped myriad benefits through programs created

and implemented by mediation centers, which focus on the development of effective conflict resolution skills and violence

prevention strategies. 85 Diverse center programs contribute to community capacity as mediation services strengthen individuals

and relationships.



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*203 EMERGING ISSUES, CHALLENGES, AND FUTURE TRENDS

Due to the sheer volume of opinions and literature, it is not the purpose of this Article nor in the best interest of the reader to

review in any detail the emerging issues in the field of dispute resolution. Suffice it to say that Nebraska is not free from the

philosophical and theoretical controversies observed elsewhere.

The most pervasive issue in the state resides in the arena of mediator competency and standards of conduct. Much has been

written about mediator orientations as a way to describe and delineate mediator behavior. 86 In theory, the facilitative mediator

focuses on self-determination and enhancing communication between parties. 87 An evaluative mediator takes responsibility

for content, gives advice, and assumes that parties need direction regarding the merits of their case and grounds for settling. 88

The issue of which behaviors are appropriate for mediators practicing within the Nebraska system has come to the forefront

as more attorneys receive training in mediation.

The quandary arises from a role conflict. It is every attorney's ethical obligation as an advocate to use evaluative strategies in theassessment of a client's legal position within the context of governing law. It is those maxims embedded in legal education and

the Code of Professional Responsibility - to judge the merits of a case and to advise within the boundaries of external standards

- that make mediation difficult for many attorneys. In Nebraska, the principles detailed in the Dispute Resolution Act and

subsequent legislation, as well as in the Code of Standards and Ethics, clearly define the role of a mediator as facilitative. ODR

training provides attorney-mediators with facilitative skills and emphasizes that providing substantive content as a mediator

subverts the intent of the process and, in all likelihood, the parties' desired outcome. Deciding when to put which hat to the

side becomes the dilemma for attorney-mediators.

One response to the confusion is the development of Canon 10 of the Code of Professional Responsibility and its submission to

the Nebraska Supreme Court for approval. Canon 10 defines the standards of conduct for attorney-mediators and parallels the

same elements of neutrality, empowerment, and facilitated decisions by the parties found in the Dispute Resolution Act. Anotheranswer to the question requires a look at one of the purposes of the statutes and rules governing mediation in Nebraska: much

of the intent is to inform the public *204 of what to expect in mediation. The distinction between facilitative and evaluative

postures only becomes important when mediator style is in opposition to party expectations. The dispute resolution system

authoritatively leads people to believe they will exercise control in finding solutions to their problems. The system and its

mediators are then obliged to grant them that privilege. By bullying and being dangerously persuasive, affiliated mediators,

whether they are attorneys or not, not only act outside Nebraska's standards of conduct, but also mislead the public. 89

The possibility exists that the dichotomy described above will serve to categorize mediators in a divisive way. If mediators

choose to be evaluative and therefore outside ODR standards, where will they land professionally? If they choose to employ

an evaluative model of mediation, how will consumers be informed of their own procedural choices? One of the challenges

ahead will be to maintain an atmosphere of collaboration among Nebraska mediators to keep the public well informed and findcommon ground among practitioners in order to move forward constructively. Confusing the public serves no one.

ODR and the centers face other challenges. The NEOC and special education experiences suggest that a representative group

of people are not convinced that they should come to the table. Understanding the variables that make it difficult to get people

to the table and acting on that knowledge will dispel the myths compelling people to decline. Concentrating on attorneys and

their role will be a critical step. Studies indicate that lawyers who have been involved in a mediation are much more willing

to encourage its use again. 90 Creating opportunities for attorneys to experience mediation will motivate them to share their

perceptions with clients and ultimately prepare their clients for mediation. Getting mediation into the legal vocabulary as one of



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the options available to clients may get the client to the table. Training attorneys, or their clients, in mediation is an optimal way

of facilitating that change. Integrating mediation into law school curricula, as is being done in higher education in Nebraska, is

a critical factor for building a resilient foundation for contemporary legal advocacy.

Cultural competency is an on-going challenge both for mediators and for programs. It is not enough to scrutinize our individualskills. The cultural assumptions about negotiation and problem solving inherent in a system and the model it promotes warrant

scrutiny in light of the diverse perceptions of justice and community norms in our *205 neighborhoods, courts, and schools.

Standards of practice may not be standard after all. 91

In terms of future trends, the field of dispute resolution is well positioned to help institutions and individuals deal effectively with

the repercussions from major policy shifts affecting the country, such as welfare reform and managed care. The transformation

necessary to adapt to systems change is ripe with potential conflict. Sustainable dispute resolution systems like Nebraska's

have the capacity to help states and local entities deal with conflict related to service delivery, accessing public input, and

internal organizational complexities. Nebraska's dispute resolution system has both the proven expertise to customize prevention

strategies such as training and skill building, and the depth of resources to implement intervention mechanisms.

System capabilities in Nebraska also may be called upon in the future to provide more services to the aging adult population and

to other people protected by laws that are increasingly more likely to include alternative dispute resolution mechanisms. There

is already a visible movement to define problem solving within those arenas in terms of mediation and consensual decision

making. 92

What makes Nebraska's future provocative is the element of the unknown. The rapid and successful growth of Nebraska's

dispute resolution system to date signals that the people of the state have a need for the services. Similar to its early track record,

the future of ODR and the mediation centers will be shaped by the needs within Nebraska's communities and by the system's

response to those demands, whatever they may be.

Allow the consumer to define the problem. 93

Footnotes

d1 B.A., M.A., University of the Pacific, 1974, J.D. University of Nebraska College of Law, 1993, Executive Director, Lincoln/Lancaster

Mediation Center

1S. Res. 971, 101st Cong., 135 Cong. Rec. 5166 (1989) (enacted) (statement of Sen. Grassley, quoting the 18 th Century French

philosopher Voltaire).

2 By delineating formal and informal justice systems it is my intention not only to highlight procedural changes in the mechanisms we

look to for the protection of our rights - the legal adversarial system and the law that frames it - but also to acknowledge a shift in the

perceptions human beings have about their choices for responding to conflict dynamics in their personal, work place, neighborhood,

and community relationships.

3 Kathleen Severens, director of Nebraska's Office of Dispute Resolution, and Nebraska Senator David Landis were early pioneers in

Nebraska's mediation movement. They continue to work tirelessly to expand Nebraska's options for justice, and lend extraordinary

credibility and expertise to statewide efforts. The strength of Nebraska's dispute resolution system is forged from the unwavering

contributions of time and energy by countless volunteers and dedicated mediation center staff. While this Article is designed to

inform the legal community about Nebraska's dispute resolution system, it is also a tribute to all who have participated in the system's

evolution.



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4 Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict 20-22 (2d ed. 1996).

5 See generally John W. Ragsdale, The Institutions, Laws, and Values of the Hopi Indians: A Stable State Society, 55 UMKC L. Rev.

335 (1987); James W. Zion, The Navajo Peacemaker Court: Deference to the Old and Accommodation to the New, 11 Am. Indian

L. Rev. 89 (1983); Michael Coyle, Traditional Indian Justice in Ontario: A Role for the Present?, 24 Osgoode Hall L.J. 605 (1986);

Rennard Strictland, Fire and the Spirits 11 (1975).

6 Moore, supra note 4, at 32-40.

7 Kimberlee K. Kovach, Mediation: Principles and Practice 18 (1994).

8 Moore, supra note 4, at 36.

9 Id.

10 Id.

11 Id. at 24; Kathleen Severens, Neb. Office of Dispute Resolution Basic Mediation Training Manual I, at 1 (Reissue 1996).

12 Severens, supra note 11, at 1-3; see generally Neb. Rev. Stat. 25-4801 to -4816 (Reissue 1991).

13 Severens, supra note 11, at 3.

14 Neb. Rev. Stat. 25-2901 to -2920 (Reissue 1995).

15 Id.

16 Id.

17 Neb. Rev. Stat. 25-2905 (Reissue 1995).

18 See generally Severens, supra note 11, XIII, at 3-20.

19 Id. I, at 3. The centers are Metro Mediation Center in Omaha (serving the counties of Sarpy and Douglas), Nebraska Justice Center

in Walthill (serving 24 northeast and north central counties), Lincoln/Lancaster Mediation Center in Lincoln (serving Lancaster

County), Southeast Nebraska Mediation Center in Beatrice (serving 16 southeast counties), Central Mediation Center in Kearney

(serving 31 south central and southwest counties), and Panhandle Mediation Center in Scottsbluff (serving 19 western counties).

Nebraska Office of Dispute Resolution, Nebraska Mediation: Another Way to Resolve Conflicts - The Win-Win Solution (1992).

20 See generally Severens, supra note 11.

21 All centers have governing boards and/or advisory councils that participate in developing center policies. Board size and configuration

differ from center to center. Members constitute a diverse representation of residents in each region.

22 Nebraska Office of Dispute Resolution, 1995-1996 Annual Report 4 (1996).


24 Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives to High Cost Litig. 111 (1994). Facilitative

denotes a mediator role which prohibits judgment of the merits of disputed issues by the mediator and vests disputants with the

responsibility for decision making. Neb. Rev. Stat. 25-2911 to -2913. There is no prohibition in this Act against integrating other

alternatives and other case types into center operations, and future amendments to the statute might include a broader cross-section

of dispute resolution models. These possibilities are available to centers now as long as legislative appropriations awarded by grant

to centers under the Act are not utilized for the provision of service outside what is described in the Act. Clearly, ODR-approved

centers that describe their services as mediation, fund their service provision through ODR grants, and train and label their mediators

in accordance with the Act, are bound by the codified principles of the statute.

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25 Severens, supra note 11, V, at 1.

26 Neb. Rev. Stat. 25-2914.

27 Neb. Rev. Stat. 25-2903(5).

28 Severens, supra note 11, V, at 7 (emphasis added); Kovach, supra note 7, at 9.

29 See generally Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (2d ed. 1991).

30 See generally Moore, supra note 4; Kovach, supra note 7; Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation:

Responding to Conflict Through Empowerment and Recognition (1994); Bruce C. McKinney et al., Mediator Communication

Competencies: Interpersonal Communication and Alternative Dispute Resolution (4th ed. 1995); Stephen B. Goldberg et al., Dispute

Resolution: Negotiation, Mediation, and Other Processes 103 (2d ed. 1992).

31 See generally Mark D. Bennett & Michele S. G. Hermann, The Art of Mediation (1996); John W. Cooley, Mediation Advocacy

(1996); Dwight Golann, Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators (1996).

32See Bennett & Hermann, supra note 31; Cooley, supra note 31; Riskin, 12 Alternatives to High Cost Litig. at 111.

33 Severens, supra note 11, V, at 7.

34 As in other parts of the nation, this is a fertile debate in Nebraska. Later discussion regarding facilitative versus evaluative

mediation, and its relationship to mediator competency and ethical practice within Nebraska's system, may shed some light on these

emerging issues.

35 Kovach, supra note 7, at 202.

36 Neb. Office of Dispute Resolution, Training Institute Standards and Guidelines 5-6 (1995) (listing competency standards).

37 Neb. Office of Dispute Resolution, supra note 22, at 2.

38 ODR's director, Kathleen Severens, actively participates in national dialogue within entities that include the National Council ofState Dispute Resolution Programs, the Commission for Qualifications for Court Neutrals, and the Center for Public Resources'

Working Group on Ethics for Attorney Mediators. Centers, particularly Panhandle Mediation Center and Nebraska Justice Center,

make significant contributions through the National Association for Community Mediation on behalf of the National Commission

on Community Service (known as AmeriCorps).

39 Kovach, supra note 7, at 31.

40 Id. at 203; Neb. Rev. Stat. 25-2915 (Reissue 1995).

41 Kovach, supra note 7, at 190; Richard C. Reuben, Lawyer Turned Peacemaker, 82 A.B.A. J. 60 (1996). In Nebraska, there are no

standards that inform the practice of mediation outside those applicable to the work done by the centers under the Dispute Resolution

Act. Virtually anyone Nebraska may hang up a shingle and claim expertise.

42 The dispute resolution system has a procedure in place which enables mediators trained outside of Nebraska to request system

affiliation upon approval of their educational program and mediation experience.

43 See generally Douglas A. Henderson, Mediation Success: An Empirical Analysis, 11 Ohio St. J. on Disp. Res. 105 (1996).

44 Neb. Rev. Stat. 29-2913(1).

45 Severens, supra note 11, IX, at 7-9. Some proponents of facilitative mediation consider co-mediation the rule rather than the

exception. See James L. Greenstone & Sharon C. Leviton, Elements of Mediation (1997).

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46 Neb. Rev. Stat 25-2915.

47 See generally Nebraska Office of Dispute Resolution, 1992-93 Annual Report 1 (1993), 1993-94 Annual Report 2 (1994), 1994-95

Annual Report 3 (1995), 1995-96 Annual Report 4 (1996), 1996-97 Annual Report 5 (1997).

48 Readers desiring to measure Nebraska's standards against others may consult policy drafts and other publications: Melissa Brodrick et

al., Draft: Quality Assurance and Qualifications, N.A.F.C.M. News, 1996, at 1-8; Center for Dispute Settlement-Institute of Judicial

Administration, National Standards for Court-Connected Mediation Programs; Joint Committee of American Bar Association,

American Arbitration Association, and Society of Professionals in Dispute Resolution, Final Draft, Model Standards of Conduct

for Mediators (1995); Margaret L. Shaw, Selection, Training, and Qualifications of Neutrals (1993); State Justice Institute Draft,

Qualifying Dispute Resolution Practitioners: Guidelines for Court-Connected Programs (1997); S.P.I.D.R. Comm. on Qualifications,

Ensuring Competence and Quality in Dispute Resolution Practice (1995).

49 Subsequent passage of the Parenting Act in 1993 expanded an important domestic violence component within the Family Mediation

training requirements. Neb. Rev. Stat. 43-2904(2) (Reissue 1993).

50 Severens, supra note 11. Kathleen Severens, Nebraska Office of Dispute Resolution Family Mediation Training Manual (1994).

51 See generally Kovach, supra note 7; Moore, supra note 4; Cooley, supra note 31.

52 Those assumptions often reveal themselves within mock mediations through authoritarian postures, assessments of liability, Tell

me when its over passivity, or hide-the-ball innuendo. Ideally, the cognitive processing in participatory learning stimulates the self-

awareness which is inherent in a conceptual framework that embraces mediation.

53 These include Rules Relating to the Dispute Resolution Act; Office of Dispute Resolution Policy Manual; Manual of Standards and

Ethics for Center Mediators, Directors, and Staff; and A Field Guide to Forms and Procedures for the Nebraska Mediation Centers.

Nebraska Office of Dispute Resolution, 1992-93 Annual Report 1 (1993).


55 Id.

56 For a detailed description of intake considerations, see generally Severens, supra note 11; Moore, supra note 4, at 81-97.

57 Information gathering at intake is limited because facilitative, neutral, interest-based mediation assumes that the bulk of information

exchange should take place when all parties and the mediators meet together for the first time.

58 Goldberg et al., supra note 30, at 106.

59 See generally Severns, supra note 11, XI, at 3 (citing Elaine Hallmark, The Role of Lawyers: Helping Clients Resolve Their Own

Disputes Using Mediation, What Is Mediation?, How To Prepare for Mediation?, and Your Mediation Day (1989)).

60 Neb. Rev. Stat. 48-1117(4), -1118(1) (Reissue 1994).

61 Neb. Rev. Stat. 48-168(2)(a), (b) (Reissue 1994).

62 Neb. Rev. Stat. 48-168(2)(b). Cf. Neb. Rev. Stat. 25-2901 to -2920 (Reissue 1994).

63 Neb. Rev. Stat. 43-2901 to -2919 (Reissue 1994).

64 Neb. Rev. Stat. 43-2902.

65 Neb. Rev. Stat. 43-2905.

66 Neb. Rev. Stat. 43-2904(2).

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19/86






68 Neb. Rev. Stat. 84-920.01 (Reissue 1994).


70 Id.

71 Neb. Rev. Stat. 84-923(3), (4) (Reissue 1994).

72 Administrative Dispute Resolution Act, 5 U.S.C.A. 571 to 583 (1994).

73 It was evident during discussions with the staff of Nebraska Senator Don Wesely that his bill was viewed as an important way to

nudge the state's juvenile justice systems, which for the most part are not making referrals to mediation centers in spite of the absence

of impediments. The author received notice while writing this Article that strategy meetings will begin soon in preparation for another

Fall interim study on the juvenile victim-offender bill, which is likely to be reintroduced during the 1997-98 legislative session.

74 See generally Susan Keilitz et al., A Working Paper for the National Symposium on court Connected Dispute Resolution Research

(1993). Day of trial programs are currently flourishing in Nebraska's urban counties.

75 It is unknown how the recent decision to shift domestic relations cases to county court judges will affect mediation referrals. Interface

with county court judges has been initiated in anticipation of the change.

76 Civil Justice Reform Act, 28 U.S.C. 471 to 482 (Supp. V 1993).

77 General Order No. 95-10, In re Court Annexed Mediation (D. Neb. June 30, 1995). See generally Mark R. Privratsky, A Practitioner's

Guide to General Order 95-10: Mediation Plan For the United States District Court of Nebraska, 75 Neb. L. Rev. 91 (1996) . The

Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska, has been instrumental in the development

and success of this project.

78 In contrast to traditional punitive or retributive models of justice, where the focus is on coercive authority, restorative justice

describes a model in which the offense is viewed as a wrong against people and communities. Restorative alternatives within justicesystems are strategies which focus on the crime's impact on the victim, offender, and the community. A high priority is placed on

restoration of the victim and holding the offender accountable for the human consequences of the crime and making things right. See

generally Mark S. Umbreit, Development and Impact of Victim-Offender Mediation in the United States, 12 Mediation Q. 263 (1995).

79 For a comprehensive review of youth related mediation see generally Glenda L. Cottam, Mediation and Young People: A Look At

How Far We've Come, 29 Creighton L. Rev. 1517 (1996) ; Mark S. Umbreit & Robert B. Coates, Cross-site Analysis of Victim-

Offender Mediation in Four States, 39 Crime & Delinq. 565 (1993).

80 Funding from the U. S. Office of Juvenile Justice and Delinquency Prevention has been committed to the development of restorative

justice programs, including victim-offender mediation, in Lancaster and Douglas counties. The success of these programs, as well as

increasing referrals in some rural counties, will likely provide impetus to other counties and to the Legislature to consider broader

implementation statewide.

81 Individuals With Disabilities Education Act, 20 U.S.C. 1400 to 1491 (1997).

82 The statistics that follow are drawn from the last four ODR Annual Reports as well as an informal reporting of 1996-97 figures. The

full report of the 1996-97 data will be available to the public in Fall 1997.

83 Sessions last an average of 2.6 hours.

84 District Court Judge Robert Hippe and mediation center staff in western Nebraska have forged a proactive relationship in the area of

family mediation, resulting in innovative court-based programs designed to help families experiencing divorce cope with change and

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